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Commonwealth ex rel. Beshear v. Dickerson

United States District Court, E.D. Kentucky, Central Division, Frankfort

May 9, 2019

DAVID DICKERSON, in his official capacity as Secretary of the Kentucky Labor Cabinet, Defendant.


          Danny C. Reeves United States District Judge

         In 2');">2');">2');">2018 and 2');">2');">2');">2019, a number of public school teachers protested certain proposed legislation at the state capitol building in Frankfort, Kentucky. Ordinarily, such actions would not be a problem. However, because the subject protests occurred during the school year, their actions left many districts with last-minute decisions regarding school closures. If a sufficient number of qualified substitutes could not be obtained, districts were forced to close their doors. And this left many parents and students scrambling to make alternate arrangements. As discussed more fully below, this action was not isolated. In Jefferson County, for example, the schools were forced to close for several days and critical student testing was delayed. The parties disagree regarding whether the teachers&#3');">39; actions constitute a work stoppage.

         Following the forced school closures, the Kentucky Labor Cabinet issued subpoenas to ten school districts for the purpose of investigating and determining whether the absent teachers committed violated KRS 3');">33');">36.13');">30 through an illegal work stoppage. Thereafter, on April 16, 2');">2');">2');">2019, the Kentucky Attorney General, siding with the protesting teachers, wrote to the Governor and Labor Cabinet Secretary, asserting that the subpoenas violated the teachers&#3');">39; First Amendment rights. Through this letter, the Attorney General requested that the Labor Cabinet voluntarily withdraw the subpoenas and called on the Governor to order withdrawal of the subpoenas, if necessary. David Dickerson, Secretary of the Labor Cabinet, denied the Attorney General&#3');">39;s request. He explained that the subpoenas would not be withdrawn because the cabinet was simply investigating possible violations of Kentucky law as the cabinet is required to do.

         Attorney General Andy Beshear and the Jefferson County Teachers Association then instituted this action in the Franklin Circuit Court. While the nature of the claims asserted in that court is contested, the plaintiff assert that Secretary Dickerson is exceeding his authority under various Kentucky statutes by issuing the subpoenas to obtain information regarding the teachers whose actions cause several districts to close.[1] The plaintiffs seek a temporary restraining order and/or a temporary injunction to prohibit Secretary Dickerson from acting on or enforcing the subpoenas.

         The plaintiffs&#3');">39; motion will be denied because they have not shown a likelihood of success on the merits of their claims. Further, any injury the plaintiffs may suffer is minimal because most of the information subject to the subpoenas has already been provided to the Labor Cabinet. Finally, denying the motion protects third parties from harm and promotes the public interest. In summary, the plaintiffs lose on all four factors which are considered by the Court in determining whether injunctive relief is warranted.


         In 2');">2');">2');">2018, the General Assembly passed a bill seeking to reform the state&#3');">39;s ailing pension system. However, the bill was ultimately struck down by the Supreme Court of Kentucky because the General Assembly failed to follow certain required steps in passing the bill. The General Assembly reconvened for the 2');">2');">2');">2019 Regular Session and introduced three bills affecting the public education system: House Bill 2');">2');">2');">205 (“HB 2');">2');">2');">205”), Senate Bill 2');">2');">2');">250 (“SB 2');">2');">2');">250”), and House Bill 52');">2');">2');">25 (“HB 52');">2');">2');">25”). HB 2');">2');">2');">205 sought to provide dollar-for-dollar tax breaks as an incentive for individuals and organizations to donate to private school scholarship programs. SB 2');">2');">2');">250 was introduced to amend an existing law to allow the superintendent of Jefferson County Public Schools to appoint a principal without the participation of a school-based decision-making council. HB 52');">2');">2');">25 sought to reorganize the Board of Trustees of the Teachers&#3');">39; Retirement System to reduce the number of appointments made by the Kentucky Education Association to the board.

         The Jefferson County Teachers Association apparently encouraged its members to oppose HB 2');">2');">2');">205, SB 2');">2');">2');">250, and HB 52');">2');">2');">25, to join rallies against the bills at the Capitol, and to call and write their representatives and senators. School districts in Jefferson, Fayette, Madison, Marion, Bath, Carter, Boyd, and Letcher counties followed suit in that they closed schools on February 2');">2');">2');">28, 2');">2');">2');">2019, due to expected teacher absences caused by a “sick out.” The Jefferson County School District also closed schools on March 6, 2');">2');">2');">2019, and again on March 7, 2');">2');">2');">2019, due to the number of teachers and other school employees calling in sick. The Bullitt and Oldham County School Districts also closed on March 7, 2');">2');">2');">2019, due to an excessive number of teachers calling in sick. The Jefferson County district again closed schools from March 12');">2');">2');">2, 2');">2');">2');">2019, to March 14, 2');">2');">2');">2019, as a result of teachers calling in sick. The Bullitt County district also closed on March 13');">3, 2');">2');">2');">2019, and March 14, 2');">2');">2');">2019, again due to a claimed “sick out.” The Commissioner of Education of the Kentucky Department of Education explained that the number of sick leave requests for many of the districts was “abnormally high, ” and “numbered in the thousands.” [Record No. 1-2');">2');">2');">2, 3');">33');">3');">p. 3');">33');">3] Because of these “sick outs” children missed classes, parents were forced at the eleventh hour to find other means of child care, and ACT testing was affected in at least one district by the teachers&#3');">39; actions. These harms were neither insignificant nor trivial. They affected real people in real and substantial ways.

         The Commissioner of Education e-mailed the superintendents of the ten school districts affected by the “sick outs” on March 14, 2');">2');">2');">2019, for the purpose of requesting teacher attendance records during the “sick out” periods. [Record No. 1-2');">2');">2');">2, pp. 2');">2');">2');">29-3');">30] Further, the Kentucky Labor Cabinet&#3');">39;s Office of Inspector General (“OIG”) issued administrative subpoenas duces tecum between April 10, 2');">2');">2');">2019, and April 15, 2');">2');">2');">2019, to the superintendents of the ten school districts. [Record No. 1-2');">2');">2');">2, 3');">38');">p. 3');">38] The subpoenas directed the production, inspection, and copying of all documents identifying the names of any employees who called in sick during the sick out dates. Additionally, the subpoenas required the production of copies of all affidavits from employees or letters from licensed medical professionals provided by the employees who called in sick for any of the dates of the “sick outs.”

         On April 16, 2');">2');">2');">2019, the Attorney General wrote to the Secretary Dickerson and Governor Bevin claiming that the administrative subpoenas issued to the school districts were illegal and violate the teachers&#3');">39; free speech rights. More specifically, he asserted that

[t]eachers do not surrender their constitutional rights when they become public employees. See Pickering v. Bd. of Educ., 3');">391 U.S. 563');">3');">3');">391 U.S. 563');">3 (1968). They retain the rights secured by the First Amendment to the United States Constitution, and Sections 1 and 8 of the Kentucky Constitution, including their rights to speak freely, to peaceably assemble, and to petition the government for redress of grievances. See U.S. CONST. amend. 1; KY. CONST. §§ 1, 8.

         [Record No. 1-2');">2');">2');">2, pp. 40-42');">2');">2');">2] This document was later incorporated into the plaintiffs&#3');">39; Complaint.

         Unimpressed with the Attorney General&#3');">39;s plea, Secretary Dickerson refused to rescind the subpoenas. He responded, in part, as follows:

First, you speak of duty as a privilege that is unique to your office. Like you, I am the leader of an Executive Branch agency. Thus, I, too, have certain duties under Kentucky law. KRS 3');">33');">36.050(2');">2');">2');">2) authorizes my office to “prosecute any violation of any of the provisions of any law which it is [my] duty to administer or enforce.” This includes violations of KRS Chapter 3');">33');">36. In furtherance of this mandate, KRS 3');">33');">36.060(1) allows that “[i]n the conduct of an investigation or hearing [my office] or any authorized deputy may issue subpoenas to compel the attendance of witnesses and parties and the production of books, papers, and records competent and relevant to the matter under investigation.” As the chief law enforcement officer of the Commonwealth, your primary duty should be in seeing that these laws are followed, not impeded.
There are also moral and ethical considerations in play. Many Kentuckians have expressed their frustration with the so-called “sick-outs” that the Labor Cabinet OIG is investigating. Working parents have had to scramble for expensive childcare on short notice, or potentially jeopardize their jobs . . . In Louisville, students have had to postpone taking the ACT-a requirement for admission to college-and parents have expressed concern that a significant investment they have made in ACT prep courses for their children have gone to waste. This is on top of the countless accommodations parents and students had to make in 2');">2');">2');">2018 for similar actions by public-school employees during the debate over pension reform.

         [Record No. 1-2');">2');">2 ...

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